Two dueling bills will be considered in a House committee this week, both of which streamline child custody in Alabama to emphasize shared custody.
HB 314, sponsored by Rep. Ben Robbins, R-Sylacauga, and HB 364, Rep. Kenneth Paschal, R-Pelham, are superficially very similar.
However, Paschal’s bill goes a small step further by creating a rebuttable presumption that joint custody is in the children’s best interests. The bill also clarifies the definition of joint custody, which already requires “frequent and significant contact with each parent.”
“Frequent and intense contact means the child has equal or approximately equal amount of time with both parents,” the new language adds.
The two bills will go before the House Judiciary Committee on Wednesday after public hearings during last week’s committee meeting, with several people speaking for each bill.
Robbins said his bill ensures judges retain the necessary discretion to make custody arrangements for a child.
“Everyone here knows that all divorce cases and all custody cases are not created equal and we cannot treat them the same way,” Robbins said. “So a judge needs to be able to make that decision based on the factors presented to him or her, which is in the best interests of the child.”
A supporter of Robbins’ bill read a letter from retired Tuscaloosa County Juvenile and Family Court Judge Philip Lisenby to the committee.
“These two bills provide a framework for parents to consider their needs, goals and circumstances and to reach a custody agreement for them,” Lisenby wrote. “The main difference between the two bills is the assumption in House Bill 365 that a court must apportion parental leave substantially equally.”
Lisenby said the presumption misunderstood the importance of a judicial review of the witnesses’ portrayal and conduct.
“Put simply, the imposition of an additional statutory standard such as the 50/50 presumption set out in HB 365 undermines the trial judge’s ability, after careful consideration of the evidence and circumstances of each case, to render a judgment consistent with consideration of the best interests of the children .”
Tim Smith of the Alabama Family Rights Association said the rebuttable presumption was necessary to “protect the right of children to enjoy and have access to the love, protection and care of their healthy parents.”
If the court is to challenge the presumption of evenly shared custody, Smith said the findings of fact in that decision must be in writing “so that all parties will know what the court had in mind when they made that decision.”
Nicole Clark, an Autauga County attorney, said judges will have discretion under both bills, but families deserve the rebuttable presumption and written findings of fact.
“How is it fair to tell parents that they can’t access their children or can only see their children two or three times four times a month and not tell them why?” Clark said. “You have a constitutional right to be a parent. Why are we restricting this without explaining why?”
Mary Elizabeth Curtner-Smith, a retired professor in the UAB Department of Human Development and Family Studies, said that social science research looks at splitting shared care time as 65/35 to 50/50.
“All have been shown to be beneficial for children, but not all time divisions suit every family,” Curtner-Smith said. “On two occasions, panels of child development and child psychology experts from across the country met to discuss joint custody. Both times, they could not agree to recommend a rebuttable presumption of joint custody, and all agreed that no standard applies to all families.”
Curtner-Smith also commended the bill’s requirement that parents submit a parenting plan that details how much time the child should spend with each parent. The provision is included in both bills.
“They help parents avoid future conflicts,” Curtner-Smith said.
Two other state judges also supported HB 314, also citing that it protects judicial discretion.
Paschal said the rebuttable presumptions portion of his bill was the result of two polls of judges.
He cited two judges who said they never had or never would rule on joint custody anyway.
“I don’t like it when children go back and forth,” Paschal read about a judge’s statements. “I truly believe that stability is in every child’s best interest. I don’t want the kid to think mom or dad are competing. I would never order equal custody.”
Paschal said “equal or nearly equal” custody is necessary to ensure the best outcomes for children.
Jefferson County’s Ryan Malloy spoke about his custody battle over his son, who he hasn’t seen since his son was 6, 14 years ago.
Malloy said the current system was broken and said he had gone to court many times to no avail over his ex-wife’s “visiting interference”.
“I’m a 63-year-old grandparent and I’ve resigned myself to never seeing my son again,” Malloy told the committee. “The disruptive parent spent well over $100,000 in legal fees and I went broke. Eventually I repossessed my vehicle (2009) to pay for my son’s legal fees to visit.”
Both bills include a section that would allow courts to remedy time-sharing violations by both granting the offending parent “make-up time” for lost time and providing attorneys’ fees for the time-deprived parent .
Lowndes County District Judge Adrian Johnson said HB 365 lacks standards of proof for overcoming the rebuttable presumption and therefore creates problems for appellate courts.
“My concern as a judge is that eventually … the appellate courts will have to step in and make an interpretation of what standard of evidence applies to it,” Johnson said.
Anti-domestic violence advocates also took a stand against HB 365.
“This law represents a radical departure from existing Alabama law regarding children and will have a disproportionate negative impact on children at risk of abuse and neglect,” said Kelly McTear, who teaches family law at Jones Law School in Montgomery. “It also creates an insurmountable barrier for most victims of domestic violence. A simple truth is common among those who have been abused by a loved one: they were hoping. They hoped their loved one would quit, they hoped they would have a safe home. They haven’t spent their lives constantly preparing to document the next attack. This means that unless they wear a 24/7 body cam or are physically injured, victims of abuse typically do not have evidence that can be used in a court of law that would legally disprove such a presumption.”
Kiana Mitchell of the Alabama Coalition Against Domestic Violence spoke to the committee on behalf of an Alabama mother whose son Tate was murdered by her ex-husband Brian Beuning the day before a custody hearing.
“Over the past year, Brian ended a relationship and began mentally spinning, sending Kayla increasingly threatening and disturbing text messages, including threats to kill her,” Mitchell said. “He didn’t pay child support for two years and stopped medical treatment. Her attorney requested an emergency hearing on July 9 to change custody to supervised or no visitation until Brian sought treatment. The hearing was not scheduled until August 9, a month later.
“After I found out about the hearing. Brian walked into a retail store on August 4th. bought a firearm and used it to murder Tate the night before a morning he was supposed to pick her up… Current custody laws and the justice system failed to protect Tate and House Bill 365, if passed it would protect women and children in make abusive situations even more difficult to get out of. This bill favors parental rights and does not prioritize the safety of our children.”
There was discussion among committee members about possibly merging the bills into one or amending them to accommodate some of the suggestions.
Both bills are on the agenda to be considered by the House Judiciary Committee on Wednesday, and a vote will likely be on the table.
Comments are closed.